Making the NPA’s Investigating Directorate a permanent fixture isn’t enough; an independent body with more robust tenure of office is required

25 October 2022 – 20:06

Amid growing concern that the president is, with an eye to Nasrec 2 in December, shielding his own ministers implicated in state capture (or other forms of corruption) against arrest and arraignment, his announcement of “a new chapter and a new leaf in our struggle against corruption” rings hollow and insincere.

He won’t act until the reviews of Zondo findings and attended appeals are finalised. That will be towards the end of the second term he craves.

The very notion that what will in effect amount to a reinstatement of the Scorpions via making the Investigating Directorate of the National Prosecuting Authority (NPA) permanent within the NPA, is not a proper or indeed constitutional way of addressing the binding findings of the Constitutional Court in the Glenister litigation.

The court requires adequate independence and secure tenure of office for those engaged in countering serious corruption in SA. The Scorpions were closed down by a simple majority in parliament. The rejigged Investigating Directorate could face the same fate if it were, for example, to investigate Bheki Cele for his role in those notorious police headquarters leases, or Fikile Mbalula for his “freebie” Dubai holiday.

What is actually legally required is an independent body with more robust tenure of office, best achieved by establishing a new chapter 9 institution (immune to closure by a simple majority) with a mandate to prevent, combat, investigate and prosecute serious corruption as its only specialised function.

Its reporting line to parliament would free the new body of executive interference, as was tacitly acknowledged in the 2021 state of the nation address.

That idea has been jettisoned in favour of the default position of ANC ideology, which is to secure “hegemonic control of all the levers of power in society”. Insistence on hegemony is incompatible with constitutionally compliant reform of the justice administration to render it adequately independent and secure enough to enable the effective and efficient investigation and prosecution of serious corruption.

Voters should insist on constitutionally compliant anti-corruption machinery of state as a precondition to supporting any political party. Delegates at Nasrec 2 should be of the same frame of mind when they vote in new ANC leaders for the next five years. Failure to so insist will jeopardise constitutional democracy under the rule of law in SA.

Paul Hoffman, SC
Director, Accountability Now

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